Times Reporters to Be Deposed In Scientist's Case Against U.S.

By JACQUES STEINBERG

Published: December 18, 2003

Two reporters for The New York Times are scheduled to give depositions today in a lawsuit filed against the federal government by Wen Ho Lee, the scientist at the Los Alamos nuclear laboratory who was suspected of espionage in 1999.

In the suit, Dr. Lee asserts that his privacy rights were violated by leaks of personal information from his employment records to The Times and to other news organizations.

A federal judge in the District of Columbia has ordered the reporters to provide information about their sources -- an order that they indicated in previous court filings that they might not obey, despite the potential prospect of jail time. That order, issued in October, represents more than the latest development in the case of Dr. Lee. It is also an example of what some First Amendment lawyers view as the recent undermining of longstanding protections of how reporters gather information.

In August, for example, Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit in Chicago writing in another case, expressed skepticism about any special privilege for reporters. Courts that had extended the privilege to nonconfidential sources ''may be skating on thin ice,'' Judge Posner said.

''We do not see why there needs to be special criteria merely because the possessor of the documents or other evidence sought is a journalist,'' Judge Posner wrote, in a decision that compelled a group of reporters to produce recordings of their interviews with a witness in an Irish terrorist case.

Last week, Judge Lynwood Smith of Federal District Court in Alabama ordered that a reporter for Sports Illustrated provide the court with the name of a confidential source for an article published in May about Mike Price, who was then the head football coach at the University of Alabama. The article included accusations of sexual indiscretions by Mr. Price in a Florida hotel. Mr. Price was later fired.

He is now suing both Time Inc., which owns Sports Illustrated, and the reporter, Don Yaeger, for libel.

In ordering the depositions of The Times journalists and others in the case of Dr. Lee, Judge Thomas Penfield Jackson of Federal District Court in the District of Columbia wrote that ''the court has some doubt that a truly worthy First Amendment interest resides in protecting the identity of government personnel who disclose to the press information that the Privacy Act says they may not reveal.''

The Times reporters ordered to provide depositions are Jeff Gerth and James Risen. In addition, Judge Jackson has ordered that three other reporters -- Robert Drogin of The Los Angeles Times, Josef Hebert of The Associated Press and Pierre Thomas, formerly of CNN -- cooperate with similar depositions in the coming weeks. Those who do not answer certain questions -- specifically regarding ''the identify of any officer'' who ''provided information to them directly about Wen Ho Lee'' -- could be found in contempt and sent to jail to compel disclosures.

Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, an advocacy organization partly financed by The Times Company's charitable foundation and other media companies, said that Judge Jackson's order represented a particular threat to journalists in states that had not enacted so-called shield laws to protect journalists' sources and often their notes. Such laws have been adopted in recent years in more than 30 states.

Those laws, as well as similar protections extended by courts across the country, generally trace their roots to a 1972 Supreme Court case, Branzburg v. Hayes. That case, the last one in which the court ruled on the issue, has been interpreted as setting forth a series of tests for compelling a reporter's testimony, including whether the reporter's information goes ''to the heart'' of a particular case and cannot be obtained through other means.

''This particular case has the potential to be the first major 'reporter's privilege' showdown in 30 years,'' Ms. Dalglish said.

George Freeman, assistant general counsel for The Times Company, said that what was at stake in the questioning of the reporters was a fundamental element of the journalistic process: the protection of people who supply information to reporters on the condition of anonymity.

Dr. Lee is seeking the reporters' testimony because in order to sue the government under the Privacy Act, he must identify which government agency provided the journalists with information from his records. Writing in 1999, Mr. Gerth and Mr. Risen described Dr. Lee as a suspect in the supposed transfer of information about American nuclear technology to China. In the articles, they wrote about aspects of his employment history and personal finances.

Dr. Lee was later indicted on 59 felony counts, but after nearly nine months in solitary confinement, no evidence of espionage emerged. He was released after pleading guilty to one felony count of mishandling nuclear weapons data.